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ANDYANDFLO

Am I wasting my time in my appeal for ESA???

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Hi everyone,

 

I have mentioned this particular matter before, but today after telephone calls to both the Tribunal Service & DWP (Canterbury BDC) I find that I am no wiser and in fact totally confused!

 

To start with, when I completed the ESA 50 back last year, I only described the effect that the illness shown on my 'sick note' had on my work ability. I was not aware that I could describe how other illnesses I also suffer from, even though they are not shown on the 'sick note', affect me.

 

I believed that that was the correct way to complete the form, although I actually suffer from three other illnesses. All four each have a profound effect on my life, and the whole together is the true picture.

 

I have now gathered evidence to support my 'case' even including the mental health element, being one of them that I didn't disclose, which goes back to 1995.

 

I have been told by the Tribunal that the Judge will NOT entertain any other illness, even though it existed prior to my claim for ESA and was in existence at the time of the ATOS medical and still is currently, that was not shown on the ESA50. The reason being that the medical examiner did not test that for the effect of that illness and therefore could not be part of the appeal.

 

It was suggested that I put in a new claim for a change of circumstances. Nothing has in fact changed - medically, just that the Tribunal and the DWP know nothing about the three other illnesses!

 

I then contacted DWP, and to be honest they were also confused and said that they did not really know what to do. They did say that I could NOT amend the original ESA 50 and maybe the best way forward is to submit a new ESA claim with ALL of the illnesses described. This hopefully would mean a new ATOS medical so that they could all be looked at.

 

I think this is wrong as that will put me back to the start again, and give ATOS another bite at the cherry. Besides which, How can I show that in the new claim, because it is less than 6 months ago since failing the medical, that my medical condition has deteriorated since the last ATOS medical - it hasn't - it's the same, with the same illnesses, or I have a new illness - which I don't have.

 

Hopefully some kind person on here will have the answer I need with the relevant section of the Regulations that will force the powers that be to consider what I think , is natural justice!

Edited by ANDYANDFLO

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Hi Andy,

I think you could be wasting your time with new illnesses, maybe the one you did describe in our original ESA50 will be enough. The first thing they said at my tribunal was that they could only deal with the illness I had at the medical.

At the medical the doctor reffered to my ESA50. I had not realised how important the ESA50 was either, thats probably why I ended up at tribunal in he first place.

If you submit another ESA 50 which I think you can do straight away if you have another illness not connected to the original, you will get a medical in less time than it takes to get to tribunal and you may get enough points now we are better informed.

I dont know if you can submit a new ESA50 while waiting to go to tribunal though, I hope some one else can help.I really feel for you, I know how you are feeling.

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Hi Andy,

I think you could be wasting your time with new illnesses, maybe the one you did describe in our original ESA50 will be enough. The first thing they said at my tribunal was that they could only deal with the illness I had at the medical.

At the medical the doctor reffered to my ESA50. I had not realised how important the ESA50 was either, thats probably why I ended up at tribunal in he first place.

If you submit another ESA 50 which I think you can do straight away if you have another illness not connected to the original, you will get a medical in less time than it takes to get to tribunal and you may get enough points now we are better informed.

I dont know if you can submit a new ESA50 while waiting to go to tribunal though, I hope some one else can help.I really feel for you, I know how you are feeling.

 

Hi thanks for the comments.

 

Yes I can see where you are coming from, but they are not new illnesses, two have existed since 2008/9, one since 2004 and the other since 1995.

I have only described the one I started with in 2004, and ignored the two from 2008/09 which are serious complications of the 2004 one, and completely omitted the 1995 one.

So in a way there is only one 'new' one from 1995, albeit that two others are complications of the one they are aware of - phew - that's complicated!!

 

So hoping that they will give me a pass on the one disclosed without taking into consideration any of the life threatening complications that have arisen on it since. (ie 2008/09 - well before the claim for ESA was originally made)

 

Yes I can understand that they can only deal with the illness that existed at the date of the medical. That is there because any new illness that came about afterwards didn't exist at that time.

 

In fact looking at it that way, the only 'new' illness is the mental one that originated in 1995 and is still with me. The other two ARE connected to the one disclosed, but that hasn't made my condition any worse as they were already there when I claimed ESA.

 

Put simply, in 2004 I was diagnosed as having Chronic Pancreatitis. This is very dibilitating. Then because of that condition, during 2008, I lost the ability to digest food through lack of enzymnes created by the Pancreas and had a growth removed from the Pancreas which has left me in more pain. This then caused Permanent Thrombosis in both major veins that run through the Pancreas, leaving me with severe circulation problems. Because the Pancreas is now destroyed I then became Type 1 diabetic - insulin dependant which is not controlled.

I then claimed ESA in October 2009.

 

All I described on the ESA 50 was the effect that Chronic Pancreatitis has on my work ability as that is what is shown on all of my sick notes. I ignored all of the resulting complications and how they affect me because they were not shown on my sick notes. As I have mentioned before, I believed that it was sufficient to only give an overview of the illness as described on the sick note expecting that DWP/ATOS would contact my GP for a more detailed report on everything. Was I wrong!!!

 

So effectively, all or most of the medical evidence I have gathered will be of no use at this point in time. It will of course be useful for any future new claim. The evidence will have to be sifted to cover only how the original illness affects me. ie from 2004 - date of onset to the day before the first complication arose in 2008. OK, I get that, so it has been a waste of time so far but not for the future.

 

From what I understand so far is that they would not accept ANY new claim until the result of the Tribunal is known.

Edited by ANDYANDFLO

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hellow Andyandflo

 

I am like you,in regard to the "filling" out of the esa50form.

 

I could/should have done it with a little more detail,but did not think of it being a big issue when it came to the medical.like you say andyandflo

"BOY WAS I WRONG"...(thought my doctor would be contacted,but NO:

(Whats the point putting their details on esa50 form,and they are not even going to be consulted:eek:)

 

You,me and every one may or may not win our appeals,but we will still be

able to offer our help,advice and support with what you /all of us have

learned and written:)

 

good wishes, happyhamr:)

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Put simply, in 2004 I was diagnosed as having Chronic Pancreatitis. This is very dibilitating. Then because of that condition, during 2008, I lost the ability to digest food through lack of enzymnes created by the Pancreas and had a growth removed from the Pancreas which has left me in more pain. This then caused Permanent Thrombosis in both major veins that run through the Pancreas, leaving me with severe circulation problems. Because the Pancreas is now destroyed I then became Type 1 diabetic - insulin dependant which is not controlled.

I then claimed ESA in October 2009.

Surely, if I'm reading this correct, then diabetes and thrombosis have been caused by pancreatitis. I would have thought they would be logically seen as symptoms of the illness and therefore quite acceptable to the tribunal.

A simple google tells me that diabetes is a common complication so any decent examining healthcare professional would have known this when assessing you. You can't do their job for them. Likewise it is quite possible to argue the thrombosis in the same way.

 

Best wishes

Rae

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Surely, if I'm reading this correct, then diabetes and thrombosis have been caused by pancreatitis. I would have thought they would be logically seen as symptoms of the illness and therefore quite acceptable to the tribunal.

A simple google tells me that diabetes is a common complication so any decent examining healthcare professional would have known this when assessing you. You can't do their job for them. Likewise it is quite possible to argue the thrombosis in the same way.

 

Best wishes

Rae

 

Hi Rae

Thanks once again. you are absolutely right again! Both the Thrombosis and Diabetes are complications of Chronic Pancreatitis.

 

I didn't include either on the ESA 50 or indeed consider them when putting my condition over as to how Chronic Pancreatitis affects my working ability. Of course they affect it, just as much if not more than just the initial disease itself. But, my thinking was only to indicate on the ESA 50 what Chronic Pancreatitis does and how it affect me as that was only the thing mentoned on my sick note.

 

What they are saying is that because I knew I was suffering from these complications before I claimed the benefit and chose not to disclose them, ATOS were not able to test them in their examination of me. Consequently the DM was in the dark and only able to mark me on what ATOS tested. Coming now with them, will put the DWP in a position in them not having had the opportunity of having an independent medical examination.

 

What they said was that if I chose not to explain all of my illnesses or complications when I completed the form ESA 50, they cannot be used on appeal as a reason or part reason why I should pass the ESA test at a later date. Likewise, if other illnesses or complications arise after completing the ESA 50 but before the decision is made, it is my responsibility to notify them of them, otherwise they too cannot be used in the appeal process. If they arise after the decison is made, they will form the basis of either a new claim/revised claim.

 

It does seem a little hard that failure to notify means that they cannot be brought up at the appeal stage. They say that only the evidence/statements provided in respect of the claim and any subsequent amendments up to the date of the decisiion can be accepted as evidence in respect of that claim.

 

All that the Tribunal will consider are the illnesses and complications that have already been ruled on by the DWP - nothing more , nothing less!!

 

In other words - you can't just drop something on them at the appeal hearing without the DWP/ATOS having had the earlier opportunity of looking at the evidence and ruling on it.

 

So bang goes my mental illness case as well. Looks like I will have to make a new claim for ALL of my conditions after the Tribunal hearing and start all over again Ummmmmm.

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I'm still in a disagreeing mood! :D

Whilst my argument might be seen as a little tenuous, I think it has a virtue worth exploring. It would certainly be worth raising at the tribunal itself and let their medical representative decide if it would have been reasonable for a qualified ATOS doctor to extrapolate your declared illness and draw conclusions, ie diabetes. All you wouild need supply beforehand is evidence that these are common and anticipated side effects.

The DWP are not without their own resources. The Decision Maker should have access to the DWP's own A-Z of Medical Conditions which highlights the complications of chronic pancreatitis - including diabetes. In saying they wouldn't have known is a little disingenuous on their part.

The argument is that a proper doctor would have known irrespective. The fact you failed to write every little thing down is an error caused by you not understanding the form correctly. You shouldn't be penalised for such a simple and understandable oversight...

Best wishes

Rae

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